A federal appeals court delivered a win for free speech last week, rebuking the White House and several agencies by maintaining a freeze on their policing of our speech.
Most importantly, the court validated the argument that the U.S. government has been illegally censoring Americans by proxy via social media companies, in a breathtaking and massive violation of the First Amendment.
Critical aspects of the three-judge panel's opinion, however—namely the government actors it absolved of culpability, and its minimizing of the size and scope of the freeze—made for only a qualified victory for our first freedom.
The opinion, handed down by the U.S. Fifth Circuit Court of Appeals, concerns the landmark Missouri v. Biden free speech case. The plaintiffs in the case, led by the states of Missouri and Louisiana, eminent doctors, and others alleged that under guise of combating "mis-, dis-, and mal-information," the Biden White House and nearly a dozen federal agencies have, alongside private-sector cutouts, cajoled and colluded with Big Tech platforms to silence millions of Americans. The topics social media platforms have censored at the government's direction, measuring likely hundreds of millions of posts, range from the Hunter Biden laptop story, to matters of election integrity, to virtually every aspect of the coronavirus pandemic.
Through limited discovery, the plaintiffs amassed voluminous evidence showing that federal agencies flagged for social media companies "problematic" information, posts, and accounts for suppression; encouraged the companies to change their content moderation policies to capture offending material; and coordinated with often government-tied-and-influenced "academic" and "research" organizations to do the same. And all while federal officials from the White House on down badgered, harangued, and threatened companies to censor accordingly or risk crippling political and regulatory attacks.
The companies obliged.
In the process, the plaintiffs claimed, the distinction between the government and the platforms disappeared. Big Tech became a weaponized arm of the state to target unauthorized speech—generally disfavored conservative viewpoints—eviscerating the First Amendment.
Presiding Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana found the evidence of such speech-squelching to be overwhelming. In a bombshell July 4 ruling, he declared that if the plaintiffs' allegations were true, then the case "arguably involves the most massive attack against free speech in United States' history." He concurred in that assessment, arguing that the plaintiffs indeed "have presented substantial evidence...that they were the victims of a far-reaching and widespread censorship campaign."
"The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition," Judge Doughty added. He issued a preliminary injunction freezing government-led speech policing during the pendency of the case.
Shortly thereafter the feds appealed the injunction. Authorities claimed, effectively, that if they could not interfere in elections or engage in rampant viewpoint discrimination, it would do Americans and the government "irreparable harm." They also claimed the injunction violated the government's own free speech rights, and that the injunction was overly broad and vague.
The Fifth Circuit Appeals Court saw things differently—in part.
Emphasizing the gravity of the violations that occurred, the court noted that the Supreme Court, when taking up related cases, had "rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life." The district court, the appeals judges said, was right in stating that "'unrelenting pressure' from certain government officials likely 'had the intended result of suppressing millions of protected free speech postings by American citizens.'"
The panel found that White House, Surgeon General, CDC, and FBI did likely violate the First Amendment, through coercing or significantly encouraging social media platforms to moderate content, "rendering those decisions state actions." Therefore, it upheld the injunction against them. This only further vindicates those who have criticized and called for dismantling the fed-led censorship regime—and decried the depredations of the Biden administration and the national security apparatus in imposing it upon us.
Importantly however, the appeals court found that the district court "erred" in subjecting the National Institute of Allergy and Infectious Diseases, the State Department, and the Cybersecurity and Infrastructure Security Agency (CISA) to the injunction. "Put simply, there was not, at this stage, sufficient evidence to find that it was likely these groups coerced or significantly encourage[d] the platforms" to censor, the judges wrote.
The omission of CISA is far and away most glaring here. Plaintiffs allege that CISA is the "nerve center" of federal government-led speech policing. As I testified before Congress in May:
CISA has served as a censorship "switchboard," collecting purported misinformation from government and non-government actors in the form of tweets, YouTube videos, and even private Facebook messages, and relaying the flagged content to the platforms to squelch it.
And CISA has served as an architect of the broader public-private censorship regime, helping originate, consult, network, and partner with often government-linked third parties to themselves serve as First Amendment-circumventing, mass-surveillance and mass-censorship enterprises.
CISA has tried to cover up these efforts.
The court let CISA off the hook by claiming it was not threatening platforms. It added, in contradiction of the record, that "there is no plain evidence that content was actually moderated per CISA's requests."
The court has now created a gaping loophole for the speech police to persist in their censorship. If the tip of the spear of the mass public-private censorship regime under which Americans have suffered is not subject to this injunction, doesn't it call the integrity of the entire injunction into question?
The same can be said for the court's concession to the federal government in vacating all but one of Judge Doughty's 10 injunction provisions.
The original injunction prohibited virtually every censorship-related behavior the feds engaged in concerning "protected free speech." The appeals court modified the injunction to a single slim prohibition on the defendants' taking of action "to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech," such as by "intimating that some form of punishment will follow a failure to comply with any request, or...meaningfully controlling the social-media companies' decision-making processes."
The court, in other words, seems to have blessed the speech policing efforts of the likes of CISA and other agencies, as well as their continued collusion with third-party cutouts—which Judge Doughty had prohibited.
This opinion is not the final word on whether and to what extent each of the defendants violated the First Amendment, and what the ultimate remedy for their speech policing might entail.
Not content with the Fifth Circuit's ruling, the feds indicated they would be taking their case to the Supreme Court. The government filed an application with the highest court in the land to stay the preliminary injunction while it prepares a petition for writ of certiorari. The feds indicated they will ask the Court to take up, among other questions, "Whether the government's challenged conduct transformed private social-media companies' content-moderation decisions into state action and violated respondents' First Amendment rights."
For today, we should celebrate the lower courts' recognition that we have been suffering under pervasive government-led censorship, and willingness to combat it—while acknowledging deficiencies in the jurisprudence.
Ben Weingarten is editor at large for RealClearInvestigations. He also contributes to The Federalist, the New York Post, The Epoch Times, and other publications. Subscribe to his newsletter at weingarten.substack.com, and follow him on Twitter: @bhweingarten.
The views expressed in this article are the writer's own.
Editor's Note: This piece has been updated to reflect the Biden administration's appeal to the Supreme Court.
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